U.S. obligations on elections undermined by Supreme Court’s decision on the Voting Rights Act

Today’s Supreme Court decision striking down key sections of the 1965 Voting Rights Act will likely result in restrictive voter registration laws, racial gerrymandering and stringent identification requirements that could push the U.S. further out of step with international standards for democratic elections.

Judging by recent trends, especially those seen in the last election cycle, it’s almost a guarantee that these voter suppression tactics will become more common throughout the country, and without the VRA’s important protections for minority voters, courts will not have jurisdiction to strike down these unfair laws.

** Section 4, which lays out the formula that will automatically bring a state or local government within the coverage of the law’s special obligations for states with a history of racial bias, was found unconstitutional as a violation of the Constitution’s guarantee of equality among the states. The Court said the formula, based on data more than forty years old, was seriously out of date and did not reflect “current conditions” anywhere in the country. “Congress may draft another formula based on current conditions,” the Court said.

** Section 5, which requires state and local governments selected under Section 4 to get official clearance in Washington before they may implement any change in their voting laws or procedures, however minor, was left on the books, but with a somewhat ominous statement that the Court simply was issuing “no holding” on that provision. That provision is now scheduled to expire in 2031, but it can only apply to states or local governments that are specifically drawn in under it.

** Section 2, which the Court said was affected “in no way” by the decision, applies permanently to every state and local government across the nation, forbidding discrimination in voting, but the government or a private challenger must prove that in each case, one at a time.

While the opinion did not judge Section 5 itself unconstitutional, Roberts’ opinion in condemning the obligations on covered jurisdictions called into question the provision’s validity. As Denniston explained, it appeared that after extensively reciting constitutional grievances about the law’s main provisions, Chief Justice John Roberts — in order to hold together all of the five-Justice majority — narrowed the final focus to the validity of the Section 4 coverage formula.

“This is a devastating blow to those of us that need that protection, especially given the voter suppression schemes that we saw in 2012,” said civil rights activist Rev. Al Sharpton following the ruling.

Although a narrow majority of Supreme Court Justices are now proclaiming that the 1965 law is outdated and that it unfairly singles out certain states, the fact is that more lawsuits were brought under the Voting Rights Act from 2010-2012 than in the previous 45 years combined. The Obama administration used the Voting Rights Act in the last election cycle to counter a wave of Republican measures that included strict voter ID requirements, redistricting maps and new ballot formats.

One of the most substantial victories for fair elections was the striking down of Texas’s heavily gerrymandered congressional district maps, which had been adopted by the Republican-dominated Texas legislature following the 2010 census. A U.S. federal court ruled in August 2012 that the maps redrew districts in a way that reduced the influence of minority voters, and specifically discriminated against black and Hispanic voters.

In another major victory, a federal court in Florida blocked key provisions of a state law that sought to discourage voter registration drives in the state. In a June 2012 ruling, the judge wrote that Florida’s restrictive law “make[s] voter registration drives a risky business. If the goal is to discourage voter registration drives and thus make it harder for new voters to register, the 48-hour deadline may succeed.”

But perhaps the most widespread issue in the last election was the rash of voter ID laws that were adopted around the country, but were largely struck down by the courts. In a brief filed last August, Republican attorneys general from six states covered by Section 5 complained that the Voting Rights Act prevented them from implementing stringent identification requirements to suppress minority voters. Two of those states, South Carolina and Texas, conceded that the Voting Rights Act stopped them from implementing a voter suppression law their governors had already signed.

Considering how important the law has proven in recent years, Spencer Overton, a Professor of Law at The George Washington University Law School and a Senior Fellow at Demos, wrote today that the Supreme Court’s decision was “a setback for democracy.”

Unfortunately, today’s decision gives politicians even more power to unfairly manipulate election rules and target Americans based on how they look or talk. There is overwhelming evidence that unfair voting rules remain a very real threat—too many political operatives currently manipulate rules to diminish the voices of growing minority communities.

Due to today’s decision, protecting voting rights now will be more expensive and slower. We will miss a lot of under-the-radar manipulation. It also will be tougher to stop unfair rules before they are actually used in elections and harm voters. The biggest problem will be the under-the-radar manipulation of election rules for local offices that are often non-partisan and escape national attention—over 85% of all election rule changes rejected as unfair under Section 5 were at the local level.

In its final report on the 2012 U.S. election, released on Feb. 13, the OSCE Office for Democratic Institutions and Human Rights explained the history and purpose of the Voting Rights Act.

The 1965 Voting Rights Act (VRA) is the earliest piece of federal electoral legislation. It aims to protect the rights of racial and linguistic minorities by prohibiting voting practices and procedures that have either discriminatory intent or impact. Section 5 of the VRA requires certain jurisdictions with a history of discrimination to obtain administrative or judicial pre-clearance of changes to their electoral laws and regulations from the Department of Justice or the federal district court in the District of Columbia. In such cases, the burden of proof lies with the jurisdiction that introduces legislation. The VRA foresees a mechanism for jurisdictions to obtain termination of the preclearance requirement.

The OSCE further noted that the VRA was instrumental last year in striking down a number of state laws that would have drastically curtailed the right to vote:

The majority of electoral disputes in this election cycle pertained to new legislation regarding voter identification, early voting, redistricting, and provisional ballots. Texas and South Carolina voter identification laws were denied both administrative and judicial pre-clearance under the VRA. While Texas law was found by a federal court to impose strict burdens on racial minorities, the South Carolina law was upheld but its enforcement was delayed until 2013 due to the short timeframe before the general elections. Outside of the VRA coverage, lawsuits were filed against a voter identification law in Pennsylvania, where it was decided that the law could not be implemented in the short time before the elections, and Wisconsin, where a decision is expected in 2013. Courts reinstated early voting that was curtailed by state laws in Ohio and Florida.

Now, with the key provisions of the VRA struck down, it will be far more difficult to ensure that various schemes to suppress the vote are defeated. As the Leadership Conference on Civil Rights put it,

The Constitution is clear that Congress has complete authority to ensure that no voter is denied the right to vote on account of race. That authority is vital to protecting our democracy. While we have made many strides as a country in extending the franchise to all, the weight of the evidence is clear: discrimination in voting remains a troubling and persistent practice in too many places.

The Voting Rights Act is the most successful and important piece of civil rights legislation of the 20th Century – and its work is still far from over. Jurisdictions across the country, large and small, continue to purge voter rolls, move polling places, and otherwise dilute, pack, suppress or gerrymander away the rights of voters. Section 5 of the Voting Rights Act has been the single most potent deterrent our nation had to protect them, and it must continue to perform that important function.

It could also be argued that by enabling voter suppression practices that have become so common in recent years, the Supreme Court is pushing the U.S. further out of compliance with its international obligations on fair elections. As a party to the 1990 OSCE Copenhagen Document, the United States has agreed to certain provisions in carrying out democratic elections, including the following:

To ensure that the will of the people serves as the basis of the authority of government, the participating States will

(7.1) — hold free elections at reasonable intervals, as established by law;

(7.2) — permit all seats in at least one chamber of the national legislature to be freely contested in a popular vote;

(7.3) — guarantee universal and equal suffrage to adult citizens;

In its assessments of U.S. elections based on its extensive election observation activities, the OSCE has consistently called into question the U.S. commitment to paragraph 7.3 of the Copenhagen Document, particularly in regards to the disenfranchisement of convicted felons and the residents of the District of Columbia.

Consideration should be given to providing full representation rights in Congress for citizens resident in the District of Columbia and US territories, in line with paragraphs 7.3 and 24 of the 1990 OSCE Copenhagen Document.

Further,

Restrictions of voting rights for prisoners and ex-prisoners should be reviewed to ensure that any limitation is proportionate to the crime committed and clearly outlined in the law. Federal legislation could be considered to provide consistency in restrictions to federal voting rights. Authorities should take effective and timely measures to facilitate the restoration of voting rights after a prison term has been served.

Criticizing the cumbersome voting registration system in the United States, the OSCE recommended that,

Authorities should review existing measures to register voters so as to ensure that all persons entitled to vote are able to exercise that right. States should consider further efforts to facilitate the registration of voters, including through civic education programmes. States could consider possibilities for automatic registration based on existing state and federal databases, thereby removing the need for citizens to proactively register.

With the new restrictions on voting rights that will surely emerge now that the Supreme Court has struck down key provisions of the Voting Rights Act, the U.S. lack of compliance with its international obligations will likely only get worse.

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